Mark Christopher Breslin and Others and Seamus McKenna and Others.
| Jurisdiction | Northern Ireland |
| Judge | Morgan J |
| Judgment Date | 08 June 2009 |
| Neutral Citation | [2009] NIQB 50 |
| Date | 08 June 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2009 |
1
Neutral Citation No. [2009] NIQB 50Ref:
MOR7534
Judgment: approved by the Court for handing downDelivered:
08/06/09
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN'S BENCH DIVISION
_________
BETWEEN:
MARK CHRISTOPHER BRESLIN AND OTHERS
PLAINTIFFS;
-AND-
SEAMUS MCKENNA AND OTHERS
DEFENDANTS.
__________
MORGAN J
The Claim
[1] The 12 plaintiffs in this action claim damages including aggravated and
exemplary damages for personal injuries sustained by them as a result of the
explosion of a bomb in Omagh town centre on 15 August 1998. In addition
there are three further claims for damages under the Fatal Accidents
(Northern Ireland) Order 1977 and the Law Reform (Miscellaneous
Provisions) Act (Northern Ireland) 1937 as a result of the death of members of
their families in the explosion. The plaintiffs also include a claim for an
injunction to restrain the defendants inrespect of their future conduct.
[2] The defendants are five named individuals and an unincorporated
association identified as The Real Irish Republican Army. Two of the
defendants are sued on their own behalf and/or as representing that
organisation. It is alleged against the defendants that they were in various
ways responsible for the planning, production, planting and detonation of the
bomb at Omagh.
[3] The plaintiffs are represented by Lord Brennan QC, Mr Lockhart QC and
Mr McGleenan, the first named defendant is represented by Mr Brian Fee QC
and Mr Connolly, the second named defendant did not appear, the third
named defendant is represented by Mr O'Higgins SC and Mr Vaughan, the
fourth named defendant entered an appearance but his solicitors
2
subsequently came off recordand he has taken no further part and the fifth
and sixth named defendants were represented by Mr Dermot Fee QC, Ms
Higgins QC and Ms McMahon. I am grateful to all counsel for their careful
oral and written submissions and for their assistance in the course of the trial.
I also want to record my thanks to District Judge Conal Gibbons who
presided during the taking of evidence under Council Regulation (EC) No
1206/2001 in Dublin for his courtesy and skill in conducting those
proceedings.
[4] Prior to the commencement of the trial the fifthand sixth named
defendants submitted that the pursuit of this action by the plaintiffs
constituted an abuse of process. That submission was based in part on the
fact that the public funding arrangements for this action might well mean that
the plaintiffshad no real prospect of obtaining a financial benefit and that the
collateral purpose behind these proceedings was to identify the defendants as
those responsible for the bomb despite the fact that no criminal proceedings
are contemplated. In Ruling No 5, delivered on January 2008, I rejected that
submission. I mentionit briefly now because it was raised again on behalf of
the sixth named defendant in final submissions and because in April 2008 the
House of Lords handed down its decision in Ashley v Chief Constable[2008]
UKHL 25. That was a case in which an unarmed naked man had been shot
dead by a police officer in a planned raid on his flat. The police officer was
subsequently prosecuted for murder and acquitted. The father and son of the
deceased instituted proceedings relying on assault, battery and negligence.
The Chief Constable admitted responsibility in negligence and agreed to pay
damages including aggravated damages. The Chief Constable applied to
strike out the claims in assault and battery as an abuse of process. It was
common case that there was no difference in the amount of damages that
would be recovered by the plaintiffsin pursuing the assault and battery
claimsin lightof the admissions made by the Chief Constable.
[5] The majority of the House upheld the decision of the Court of Appeal
that the action should be allowed to proceed to judgment. Lord Bingham
recognised the autonomy of the individual litigant at paragraph 4.
“4 As to the second issue, the claimants have an
arguable claim for battery of the deceased which
cannot be struck out as disclosing no cause of action,
which has not been the subject of previous
adjudication and which can in principle succeed
consistently with the acquittal of Police Constable
Sherwood at thecriminal trial and without throwing
doubt on his innocence. Success in establishing this
claim will bring the claimants no additional
compensation and may expose them to financial risk.
But it is ordinarily for the claimant, properly advised
3
of the litigation risk, to decide what claim, being
arguable and legally unobjectionable, he wishes to
pursue, and case management, legitimately used to
ensure that the court's process is efficiently and justly
used, gives no warrant to extinguish the autonomy of
the individual litigant. The claimants' reasons for
wishing to pursue their claim in battery are readily
understandable, as are the chief constable's reasons
for wishing to resist it, but it is not the business of the
court to monitor the motives of the partiesin bringing
and resisting what is, on the face of it, a well
recognised claim in tort.”
Lord Scott specifically recognised that proceedings had a vindicatory purpose
at paragraph 22.
"22 The claim forms issued by the Ashleys simply
seek damages for the torts giving rise to the deceased
Mr Ashley's death. These torts include, of course, the
assault and battery tort. The only legitimate purpose
for which Fatal Accident Actdamages can be claimed
and awarded for this tort is, in my opinion,
compensatory. The damages are awarded for a loss of
dependency. But the purposes for which damages
could have been awarded to the deceased Mr Ashley
himself, if he had not died as a result of the shooting,
are not confined to a compensatory purpose but
include also, in my opinion, a vindicatory purpose. In
Chester v Afshar [2005] 1 AC 134, para 87 Lord Hope
of Craighead remarked that “The function of the law
is to enable rights to be vindicated and to provide
remedies when duties have been breached” and that
unless an infringed right were met with an adequate
remedy, the duty would become “a hollow one,
stripped of all practical force and devoid of all
content”. So, too, would the right. How is the
deceased MrAshley's right not to be subjected to a
violent and deadly attack to be vindicated if the claim
for assault and battery, a claim that the chief constable
has steadfastly and consistently disputed, is not
allowed to proceed? Although the principal aim of an
award of compensatory damages is to compensate the
claimant for loss suffered, there is no reason in
principle why an award of compensatory damages
should not also fulfil a vindicatory purpose. But it is
difficult to see how compensatory damages can could
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7 cases
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McCarthy v Chief Constable of Merseyside Police
...it is not necessary to explore them in this appeal. A comprehensive discussion of the relevant authorities may be found in the Omagh BombingCase [2009] NIQB 50. It is unnecessary to explore them because it is clear that the Recorder was not concerned with mens rea in a technical sense when ......
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John Clark & Ors v Gerry Adams & Anor
...own right to an action: London Association for the Protection of Trade v. Greenlands Ltd. [1916] 2 AC 15; cited in Breslin & ors v. Seamus McKenna & ors [2009] NIQB 50 at [83], a personal injuries action arising from the Omagh town centre bombing in August 10. In circumstances where Mr Adam......
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Thomas Ward v The Chief Constable of Greater Manchester Police
...trespass and can be grossly disproportionate, for example a failure to order PD Jerry to release. The clamant relies on Breslin v McKenna [2009] NIQB 50 para 17 I accept the Claimant's submissions outline the correct test for my purposes. There is at least a real prospect of that argument s......
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Breslin and others and Murphy and Daly
...Tribunal established by law. 6 [17] These rights were helpfully discussed by Morgan J in Breslin and Others v McKenna and Others [2009] NIQB 50 at paragraphs [171] and [172]. There the learned judge pointed out that: “The entitlement to a fair hearing will often involve consideration of man......
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3 books & journal articles
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Contract formation
...J. he real Ira is an unincorporated association, and hence cannot be sued in its own right: Breslin v McKenna (Omagh Bombing case) [2009] NIQB 50 at [83], per Morgan J. 369 Ward v Eltherington [1982] Qd r 561; Michael John Construction Ltd v Golledge [2006] EWhC 71 (TCC) at [42]–[43], per h......
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Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa
...77 (8 Decem ber 2011) at para [83].20 Hollington ru le: Hollington v Hewthor n [1943] KB 587; Breslin v McKenna (Omagh Bombing case) [2009] NIQB 50 (08 June 2 009) at para [130].21 Chua Boon Chye v Publi c Prosecutor [2015] SGCA 31 at para [46].22 Capital Century Textil e Co Ltd v Li Dianxi......
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The Suit That Does Not Really Fit
...cause the explosion, but the conviction was overturned on appeal and he isawaiting a retrial. 2 Breslin and Others v McKenna and Others [2009] NIQB 50 (Omagh Bombing case).3 The Times, 9 June The Journal of Criminal Law (2009) 73 JCL 363–366 363 doi:10.1350/jcla.2009.73.5.584 The Journal of......